direct legislation. In most European countries it has been codified by statute, to the general satisfaction of the people; and the conspicuous success of the Indian Penal Code shows that English criminal law is susceptible of being so treated. Thus we may say that all the branches of law which I have enumerated are fit matters for direct legislation by the sovereign power, and less fit to be left to jurists and magistrates.

As to private law in the narrower sense of the term, the law of property, of inheritance, of contracts, of torts, and so forth, it has already been remarked that it was at Rome and is in England the offspring of Custom, that is to say, of the usages of the community, and of the reflections and discussions of lawyers, bringing these usages into a precise shape and developing them in points of detail, together with the decisions of judges stamping them as recognized in those points of detail as well as in their general principles. As time went on, direct legislation was more and more resorted to both at Rome and in England either to define or to change the law which jurists, magistrates, and judges had wrought out of materials provided by custom. It was often necessary, because there were faults in the law which the Courts had not the power, even if they had the wish, to alter. Yet direct legislation has seldom been successful except either in expunging such faults, or in systematizing what was already well settled. Compare, for instance, the modern law of negotiable instruments, built up by the custom of merchants and the Courts, and not reduced to the form of a statute till nearly every question had been thoroughly worked out by lawyers. in the course of judicial practice, with the law of Joint Stock Companies, which is mainly the product of direct legislation. The former is as definite and practically convenient as the latter is confused and unsatisfactory. It is quite true that the latter topic is one which could not well have been left to usage and the Courts. Yet such a comparison indicates the difficulties which con

front a legislature when it attempts to create de novo, that is to say, on general principles and without much. help from custom. The law of Joint Stock Companies with limited liability is one of those departments which needs to be treated by the method of constant experiment, varying from time to time the remedies needed against the new forms in which fraud and trickery appear, and meeting by fresh provisions the devices by which crafty men evade the rules intended to protect the unwary 1.

A magistrate like the Roman Praetor might perhaps deal with such a branch of law more effectively than can either an English judge or the English Parliament -more effectively than a judge, because his powers. would be wider; more effectively than Parliament, because be could more promptly and easily drop a provision which had proved inefficient, and try the working of a new one without purporting to make it a part of the permanent law of the land.

It follows from these considerations that branches of the law are much more fit than others to be embodied in a code, and that the discussions, more frequent and more animated thirty years ago than they are to-day, as to the merits and drawbacks of codification, ought to have distinguished more carefully than they did between the adaptability to diverse departments of law of a system of rules enacted in a form intended to be final. We may hope to have some light upon this subject from the working of the new German Code. In any case, it may be suggested that a society in which the ideas and habits that relate to any one side of its life are changing-as for instance those relating to the civil status of women have changed in England during the last fifty years, or in which the methods of business are changing, as those relating to joint stock

1 It must, however, be added that the difficulties which surround this most unsatisfactory branch of our law are partly due to the recurring collision of two different theories, that of Caveat emptor (let the buyer beware) and that which would exact uberrima fides (the amplest good faith) from a company promoter or director

enterprise have changed both in England and America -does ill to stereotype in a form difficult to amend the particular legal rules which govern it at any given moment, however adequately that form may for the moment embody the substance of those rules.

XV

THE HISTORY OF LEGAL DEVELOPMENT AT ROME AND IN ENGLAND

In the last preceding Essay the organs of legislation, and the methods whereby they were worked at Rome. and in England respectively, were discussed and compared. A consideration of the course which legal change took, in its various phases of development, reform or decay, may be completed by inquiring into the general causes and forces which determined and guided the process of change. To justify the selection of Rome and England for comparison it is necessary to recur to two points only in which the history of institutions in these two States presents a remarkable analogy. Both have been singularly independent of outside influences in the development of their political character and their legal institutions. The only influence that seriously told on Rome was that of the Greeks: yet how thoroughly Roman all the institutions that ever had been Roman remained down till the second century of the Empire, after Hellenic influence had for more than two hundred years been playing freely and fully upon literature and thought! So English institutions have been far less. affected by external influences than have been those of any other part of European Christendom. In France, Italy, Germany, and Spain, the traces of Roman dominion were never obliterated, and Roman law too,

both through its traditions and through the writings which embody it, has always been a more potent factor than it ever was here. These countries have, moreover, borrowed more from each other than we have done from any one of them, except, perhaps, in the days when Normandy gave a Continental tinge to the immature feudality of England. And, secondly, both Rome and England have extended their institutions over vast territories lying beyond their own limits. Each has been a conquering and ruling power, and the process by which each grew into a World State from being, the one a City and the other a group of small but widely scattered rural tribes, offers striking points of resemblance as well as of contrast. I might add that there are similarities in the character of the two nations, similarities to which their success in conquering and ruling is due. But, for the moment, it is rather to law and institutions than to character that I seek to direct the reader's attention.

Since the law of every country is the outcome and result of the economic and social conditions of that country as well as the expression of its intellectual capacity for dealing with these conditions, the causes which modify the law are usually to be sought in changes which have passed upon economic and social phenomena. When new relations between men arise, or when the old relations begin to pass into new forms, law is called in to adjust them. The part played by speculative theorists or by scientific reformers who wish to see the law made more clear and rational is a relatively small factor in legal change, and one which operates only at rare moments. The process of development, if not wholly unconscious, is yet spontaneous and irregular. Alterations are made, not upon any general plan or scheme, but as and when the need for them becomes plain, or when it has at least become the interest of some ruling person or class to make them.

The relation of the general history, political, economic, and social, to changes in laws and institutions is